Rupam Bhatta vs The State of Tripura

S. Talapatra, J.—1. Heard Ms. P. Dhar, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the state.

This is a petition fled under section 397 read with Section 401 of the Cr.P.C. against the judgment dated 20.09.2013 delivered in Criminal Appeal No. 13(1) of 2013 by the Additional Sessions Judge, No. 4, West Tripura, Agartala, whereby the appeal fled by the petitioner against the judgment dated 30.01.2013 delivered in G.R. 1010 of 2006 by the Sub-Divisional Judicial Magistrate, Agartala, West Tripura has been dismissed. By the said judgment dated 20.09.2013, the conviction and punishment under Sections 337 and 338 of the IPC were interfered with and set aside. But the conviction under section 304-A read with section 279 of the IPC has been sustained. For that reason, the petitioner has challenged the legality of the said judgment dated 20.09.2013.

The prosecution''s case in short is that on 05.10.2006 the complainant (PW-1) boarded the vehicle bearing the registration No. TR03-3878 from Sekerkote to reach Arundhuti Nagar, N.T.F. Camp at about 10.05 a.m. When the said vehicle reached at Surjyamaninagar Kachari, allegedly being driven rashly and negligently and with high speed, the driver of the said vehicle lost his control and the vehicle got capsized and rolled from the road down into a pond causing severe and fatal injuries to several passengers including PW-1. The injured persons were immediately shifted to the hospital. One Nitai Debnath succumbed to his injuries.

Based on the said complaint, Amtali Police Station Case No. 67 of 2006 under Sections 279,337,338 and 304-A of the IPC was registered and taken up for investigation. On completion of investigation, on 07.08.2008, the final police report charge-sheeting the petitioner was fled under Sections 279/337/338 and 304-A of the I.P.C. On taking cognizance, the substance of the accusation was read to the petitioner for committing offence punishable under Sections 279,337, 338 and 304-A of the I.P.C., when the petitioner pleaded that he did not commit any offence and claimed to face the trial.

In order to substantiate the charge, the prosecution adduced as many as 12 witnesses including three doctors who attended the injured persons. To rebut the evidence led by the prosecution one defence witness DW-1 was also examined. The following documents were admitted in the evidence during that trial:

The following documents were exhibited by the defence:

On examining the accused under section 313 of the Cr.P.C. and having his response to the incriminating materials, the trial court has observed that the prosecution has proved the charge beyond all reasonable doubt and accordingly, the petitioner was convicted under Sections 279/337/338 and 304-A of the IPC. On rejecting the prayer for probation, the petitioner was ordered to suffer rigorous imprisonment (RI) for one year for committing the offence punishable under Section 304-A of the I.P.C., RI for three months for offence punishable under Section 379 of the I.P.C. and RI for three months for the offence punishable under Section 337 of the I.P.C. and RI for six months for the offence punishable under Section 338 of the I.P.C. with a direction that all the sentences shall run concurrently.

Being aggrieved by the said judgment and order dated 30.01.2012, the petitioner preferred an appeal under section 374(3) of the Cr.P.C. in the court of the Sessions Judge, West Tripura, Agartala who in turn transferred the appeal being Criminal Appeal 13(1) of 2013 to the court of the Additional Sessions Judge, West Tripura, Agartala, Court No. 4. By the impugned judgment dated 20.09.2013, the Additional Sessions Judge has observed as under:

"In the given case, the Ld. Court below convicted and sentences the convict-accused U/Ss. 279/337/338 and 304 A, IPC. Here, in view of the spirit of the aforesaid illustration, the conviction and punishment U/Ss. 337/338, IPC are liable to be set aside but the conviction and punishment U/S. 304A r/w section 279, IPC is liable to be up held."

The illustrations as referred from Section 71 of the I.P.C. is as under:

"A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating."

Ms. P. Dhar, learned counsel appearing for the petitioner has succinctly submitted that there is no medical evidence of death of the victim Nitai Ch. Debnath and the oral evidence cannot be admitted as proof of death and as such, the conviction under section 304-A of the I.P.C. is not sustainable. That apart, Ms. P. Dhar, learned counsel appearing for the petitioner has submitted that from analysis of the oral testimonies of the prosecution witnesses, it would be apparent that they are either stating that the vehicle was being driven with high speed or negligently. According to her ''high speed'' is a relative term. As such, except the accident itself there is no evidence to show that the petitioner has committed the offence. However, Ms. P. Dhar, learned counsel appearing for the petitioner has submitted that so far the evidence as to the injuries are concerned, that cannot be denied. But the question that is relevant is whether for such injuries, rash or negligent act of the petitioner is responsible or not. She has thus submitted that the evidence is so inadequate that would prohibit this court to reach to an interference that rashness and negligence has been proved beyond reasonable doubt.

From the other side Mr. A. Ghosh, learned Public Prosecutor appearing for the state has submitted that for example if the testimony of PW-9 is taken, it can be demonstrated that the vehicle was being driven in such a high speed that PW-9 forbid the petitioner not to drive the vehicle with such high speed as it was raining at that time. After few minutes, the petitioner losing the control of the vehicle dashed a tree along the road and it got capsized and rolled down to the agricultural land in the down-gradient. However Mr. Ghosh, learned Public Prosecutor has fairly admitted that no medical record has been admitted in the evidence to substantiate the cause of death, even though the Investigating Officer coming to the trial has categorically stated that said Nitai Chandra Debnath has died at the SSKM Hospital, Kolkata. Mr. Ghosh, learned Public Prosecutor, has candidly submitted that the duty of the Investigating Officer was to collect the all material records relating to the death of Nitai Chandra Debnath.

Having regard to the rival contentions placed before this court and having scrutinized the records this court is of the view that the conviction under section 304-A of the I.P.C. cannot be sustained unless the medical record as to the death or to the cause of the death is placed and admitted in the trial. In absence thereof, it cannot be conclusively inferred that the death that has occurred was due to the rash and negligent act. Consequently, the petitioner was acquitted from the charge. But taking all the pieces of the evidence together including the oral testimonials of PW-9 in particular and the other witnesses, and the report of the motor vehicle Inspector that the vehicle was in a ft condition and there was no mechanical defect in the vehicle which might lead to the said accident, this court is of the view that it has been established that the vehicle was being driven negligently. It was the duty of the driver to drive the vehicle in a controllable speed when it was raining.

In this regard it has to be noted that Ms. P. Dhar, learned counsel has relied on a decision of this court in Madhu Sudhan Debnath versus State of Tripura, reported in , 2012 (6) GLR 65 and this court has observed that:

"In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur."

Having appreciated the judgment of this court, this court is of the considered opinion that the materials are abundant but the petitioner did not take or did not discharge his duty to care for driving the vehicle carefully and cautiously rather he indulged in negligence driving. As a result, the conviction as passed under Section 279 for committing offence of rash driving on a public road in a manner so as to endanger the human life or likely to cause harm or injury to persons does not warrant to be interfered with. Hence, the petitioner is otherwise, liable to suffer imprisonment for three months as imposed by the trial court. But on considering the financial condition of the petitioner and his age at the time of accident, this court is of the view that it is a ft case where this court should keep the sentence at bay and the petitioner be released on furnishing a bail of good conduct secured by the surety of the worth of Rs. 10,000/- for a period of one year from the date of furnishing such bond. It is made clear that if the probation officer reported adversely against the petitioner during the bond-period he shall surrender in the trial court to suffer the sentence as indicated above i.e. imprisonment for three months for committing offence punishable under Section 279 of the I.P.C. The petitioner shall furnish the bond in the court of the Sub-Divisional Judicial Magistrate, Belonia within 15 days from today, else the necessary action shall be taken by the Sub-Divisional Judicial Magistrate, Belonia in view of the order of sentence as partly modified by this court.

In the result, the petition is partly allowed.

Send down the LCRs forthwith.